Somerville v. Keller

• Decision Date: 23 January 1933
• Docket Number: 30158
• Court: Mississippi Supreme Court
• Parties: SOMERVILLE v. KELLER et al

145 So. 721

165 Miss. 244

SOMERVILLE v. KELLER et al

No. 30158

Supreme Court of Mississippi

January 23, 1933

Division A

Suggestion Of Error Overruled February 6, 1933.

APPEAL from circuit court of Bolivar county, HON. WM. A. ALCORN Judge.

Action by R. N. Somerville against Charles B. Keeler and others. From a judgment for defendants, plaintiff appeals, and defendants cross-appeal. Affirmed on cross-appeal, and reversed and remanded on direct appeal.

Affirmed on cross-appeal and reversed and remanded on direct appeal.

F. E. Everett, Indianola, Somerville & Somerville, of Cleveland, and Howorth & Howorth, of Jackson, for appellant.

The ordinance making it unlawful for parties to permit a child under fifteen to drive an auto in the city of Cleveland, Mississippi, were competent evidence and should have been admitted in evidence and the cause tried as if that were the law of the case. The ordinance was not in conflict with the state law but simply added a further restriction.

U. S. F. & G. Co. v. Guenther, 281. U.S. 34-38, 74 L.Ed. 683; Wasson v. City of Greenville, 123 Miss. 642, 86 So. 450; Snyder v. Campbell, 145 Miss. 287, 110 So. 678; Meridian Coca-Cola Co. v. Watson, 161 Miss. 108, 134 So. 824; Quillin v. Colquhon, 42 Ida. 522, 247 P. 740; Lidfore v. Pflaum, 115 Ore. 142, 205 P. 277, 236 P. 1059; Brazier v. Philadelphia, 211 Pa. 297, 7 Ann. Cas. 548; Heidle v. Baldwin, 161 N.E. 44, 118 Ohio St. 375.

Appellees having violated the ordinance were guilty of negligence in law as it is negligence per se to violate such an ordinance.

Williams v. State, 161. Miss. 406, 137 So. 106-7; Heidel v. Baldwin, 118 Ohio St. 375, 161 N.E. 44; Taylor v. Stewart, 90 S.E. 134; Hopkins v. Dropper, 198 N.W. 738; Walker v. Klopp, 157 N.W. 962.

Negligence of the appellees was the proximate cause of the accident.

Reid v. McDavitt, 140, So. 722-3; Code 1930, Section 5572; Schultz v. Morrison, 154 N.Y.S. 257.

Every intendment is to he made in favor of the lawfulness of the exercise of municipal power, making regulations to promote the public health and safety, and that it is not the province of courts, except in clear cases, to interfere with the exercise of the power reposed by law in municipal corporations for the protection of local rights and the health and welfare of the people of the community.

Dobbins v. Los Angeles, 195 U.S. 223, 49 L.Ed. 169.

Municipalities in this state have the right to pass ordinances with respect to the streets, alleys, etc. is not only settled by the Code of this state but this court has recognized that it is not only the right but the duty of the city to regulate the streets and this duty could not be delegated to the county or the state or to any other body, corporate or politic.

Town of Senatobia v. Dean, 157 Miss. 207, 127 So. 773.

It is a reasonable police regulation to require that a child be over sixteen or eighteen years of age before being permitted to drive a motor vehicle.

Charbonneau v. McRury, 153 A. 457; State ex rel. Oleson v. Garunke, 229 N.W. 329.

Every automobile is equipped with a signalling device. This device is usually called horn, but it might be called anything, the court judicially knows that each auto has some form of signalling device. When the law requires that a signal be given ordinary intelligence dictates that the signalling device be used and if a horn is there it should be used.

Edwards v. Carolina and N.W. R. R. Co., 140 N.C. 49, 52 S.E. 234; Miles v. Central Coal & Coke Co., 172 Mo.App. 229, 157 S.W. 867.

While a motor vehicle is not, in and of itself, to be deemed a dangerous machine, nevertheless it becomes such in the hands of a careless or inexperienced person. The statute has, in effect, so declared when it forbids its operation by persons under the age of eighteen. It, in substance, declares that such persons do not possess the requisite care and judgment to run motor vehicles on the public highways without endangering the lives and limbs of others. While the relation of parent and child does not render the parent liable for the torts of the child, nevertheless a parent may become liable for any injury caused by the child where the parent's negligence made it possible for the child to cause the injury complained of and probable that the child would do so. This liability is based upon the rules of negligence rather than the relation of parent and child.

Schultz v. Morrison, 154 N.Y.S. 257, 258.

L. C. Hallam, of Jackson, for appellees.

Ordinance of May 7, 1920, Exhibit "B" to the declaration in conflict with state law and therefore void.

Johnson v. Philadelphia, 93 Miss. 34, 47 So. 526; Section 15, Chapter 116 of Laws of 1916, page 11; Section 10 of Chapter 116 of Laws of 1916; Ex Parte Daniels, 183 Cal. 636, 192 P. 443; Schneiderman v. Sesanstein, 121 Ohio St. 80, 167 N.E. 158; Baraboo v. Dwyer, 166 Wis. 372, 165 N.W. 297, page 19; Re Automobile Acts, 15 Pa. Dist. R. 83; Ex Parte Wright, 82 Tex. Crim. Rep. 247, 199 S.W. 486; People v. Braum, 166 N.Y.S. 708, page 19; Stewart v. Olson, 188 Wis. 487, 206 N.W. 909; Kidd v. Chissel, 126 A. 83; Wasson v. City of Greenville, 123 Miss. 642, 86 So. 450; Snyder v. Campbell, 145 Miss. 287, 110 So. 678; Meridian Coca-Cola Company v. Watson, 161 Miss. 108; Chapter 201, Laws of 1928.

Section 6, Ordinance July 7, 1914, void because in conflict with state law and because too indefinite.

United States v. Capitol Traction Company, 19 Ann. Cas. 68, 69; Augustine v. State, 86 Am. St. Rep. 765, 52 S.W. 97; United States v. Reese, 92 U.S. 220, 23 L.Ed. 565; State v. Gaster, 12 So. 739; Ex Parte Jackson, 45 Ark. 158; Hewitt v. State Board of Medical Examiners, 3 L.R.A. (N.S.) 896, 113 Am. St. Rep. 315, 7 Ann. Cas. 750; Ex Parte McNulty, 11 Am. St. Rep. 257, 19 P. 257; Matthews v. Murphy, 54 L.R.A. 415, 63 S.W. 785; Stoutenburgh v. Frasier, 48 L.R.A. 220.

Violation of ordinance not proximate cause of injury.

Rowlands v. Morphis, 158 Miss. 662, 668, 130 So. 906, 907; Railway Company v. Carter, 77 Miss. 516, 27 So. 993; Clisby v. M. & O. Railroad Company, 78 Miss. 937, 29 So. 913; Hossley v. Union Indemnity Company, 137 Miss. 537, 102 So. 56; Newman v. Lee, 133 So. 10; Heidel v. Baldwin, 118 Ohio St. 375, 385, 161 N.E. 44, 58 A.L.R. 1186; Parker v. Wilson, 60 So. 150, 43 L.R.A. (N.S.) 87, 90.

Of course, as the state motor vehicle law did not become effective until thirty days after April 8, 1916, the Mayor and Board of Aldermen of the City of Cleveland could not have passed section 6 of the ordinance of July 7, 1914, with the provisions of that Act in view.

At the time the ordinance of July 7, 1914, was passed, which was almost nineteen years ago--there was no law, state or municipal, which required that any sort of signalling device be attached or equipped to automobiles, or that prescribed the kind of signalling device; and the word "vehicles" used in the body of the ordinance is as applicable to horse-drawn conveyances as it is to gasoline-propelled conveyances. When the ordinance of 1914 was passed, the City Fathers had no guide by which the word "signal," used by them, could be defined; and it cannot logically be held that because the Legislature two years later enacted a law requiring that automobiles be equipped with a signalling device, and defining the kind of device, the Municipal Council had in mind such a signal or such a device when it provided for the giving of a signal.

Argued orally by Lucy Somerville Howorth and A. D. Somerville, for appellant, and by L. C. Hallam, for appellee.

OPINION

Cook, J.

The appellant instituted this suit against Mr. and Mrs. C. B. Keeler and their daughter, Elizabeth Keeler, seeking to recover damages for personal injuries resulting from the alleged negligent operation of an automobile, owned by the appellees, which was, at the time of appellant's injury, being driven by the said Elizabeth Keeler. At the conclusion of the evidence, the court peremptorily instructed the jury to return a verdict in favor of the appellees, and thereupon a nonsuit was entered as to Elizabeth Keeler. This appeal was prosecuted from the judgment entered in favor of Mr. and Mrs. Keeler.

On the afternoon of December 8, 1929, the appellant was driven in his automobile by his daughter from his home in Cleveland, Mississippi, to the post office, which is located on the east side of Sharpe avenue in said city. Sharpe avenue runs north and south, is about fifty-two feet wide, and is paved with asphalt. The post office is in a building near or toward the center of a block of buildings on the east side of this avenue, which fronts west and toward the railroad tracks and the depot. When the appellant's automobile arrived at a point in the avenue approximately in front of the post office, it was discovered that all parking spaces on the east side of the block near the post office were occupied, and thereupon he alighted from his automobile, and directed his daughter to drive north to the next street intersection and there turn and return for him on the west side of the avenue. He then entered the post office and took from his lock box two letters, one of which he opened and read, either before he left the post office, or as he walked back into the avenue to cross to his automobile, which was then in the act of being parked at the west curb of the avenue.

Upon the point as to whether the appellant was reading as he walked across the avenue, the evidence is in conflict; but he testified that he opened and read one letter in the post office building, and then walked out into the avenue between two parked cars; that as he walked out into the avenue, he looked south and observed an automobile being pushed by hand from the curb into the avenue just south of the point where he...